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January 24, 2020

Reversing state precedent, Florida Supreme Court cuts back on reach of SCOTUS Sixth Amendment capital ruling in Hurst

A little more than four years ago, the US Supreme Court declared unconstitutional Florida's death penalty procedure in Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2016) (available here), and that ruling raised a host of tough questions about what Hurst meant for roughly 400 persons then on death row in Florida.  I have not been able to follow closely all the Florida state rulings seeking to apply Hurst over the last four years, but a helpful reader made sure I did not miss the latest consequential ruling from the Florida Supreme Court, Florida v. Poole, No. SC18-245 (Fla. Jan. 23, 2020) (available here), which was handed down yesterday.  This local press article, headlined "Florida Supreme Court says unanimous jury not needed for death penalty in major reversal," provides some of the details and context:

In a stunning reversal of a previous decision, the Florida Supreme Court ruled Thursday that a unanimous jury should not be required to sentence someone to death. Federal law, and every state that has the death penalty except Alabama, require unanimous juries for the death penalty, rather than a simple majority.

Florida law used to only require that a majority of the jury make a recommendation to the judge on whether to sentence a defendant to die. The judge then issues a final ruling based on that recommendation. But after a decision by the Florida Supreme Court in 2016 struck down that model in a case called Hurst v. State, the Legislature changed its law to mandate a unanimous jury.

But Thursday’s ruling opens the door for state lawmakers, if they wish, to return Florida to one of the few states that don’t require a unanimous jury to impose the death penalty. “It is no small matter for one Court to conclude that a predecessor Court has clearly erred,” the majority opinion of four justices states. But, “in this case we cannot escape the conclusion that ... our Court in Hurst v. State got it wrong.”

In the majority opinion, the justices wrote that their own court’s prior decision was made in error, because the justices at the time had misinterpreted a U.S. Supreme Court ruling that found Florida’s death sentencing process unconstitutional.

The U.S. Supreme Court’s ruling did not, in fact, mean that a jury had to unanimously sentence a person to death, they wrote. Rather, that court only said that a jury had to unanimously find that a defendant was eligible for the death penalty, because of so-called “aggravating factors,” such as if the crime was “especially heinous, atrocious, or cruel” or was committed against a child under 12. But the final decision of whether a defendant should be sentenced to die does not require unanimity, Florida’s highest court said.

What does this decision mean? For one, it means the man, Mark Anthony Poole, who brought this case to the Supreme Court after he was sentenced to death with only the majority of a jury, will once again get the death penalty, after his sentence was previously vacated. He has been convicted of first degree murder, attempted first degree murder, sexual battery, armed burglary and armed robbery.

There are 157 death row cases where the person was eligible for a new sentence under the 2016 ruling. Since then, those cases have been going through various stages of re-sentencing, according to the Washington-based Death Penalty Information Center....

In a blistering dissent, Justice Jorge Labarga said the decision by the majority will return Florida to its status as “an absolute outlier." He was the lone dissent. There are currently only five justices on Florida’s Supreme Court, because two of Gov. Ron DeSantis’ three appointments were recently promoted to federal courts.

“In the strongest possible terms, I dissent,” Labarga wrote. “Death is indeed different. When the government metes out the ultimate sanction, it must do so narrowly and in response to the most aggravated and least mitigated of murders. ... this Court has taken a giant step backward and removed a significant safeguard for the just application of the death penalty in Florida."

Labarga also noted that Florida “holds the shameful national title as the state with the most death row exonerations” — all the more reason to keep the unanimous jury safeguard in place. Twenty-nine people on death row in Florida have been exonerated since 1973, according to the Death Penalty Information Center.

Responding to Labarga’s dissent, Justice Alan Lawson wrote that this decision does not change Florida’s state law, which requires the unanimous jury. “The majority today decides constitutional questions, not political ones,” Lawson wrote. “If the Florida Legislature considers changing (the law) to eliminate the requirement for a unanimous jury recommendation before a sentence of death can be imposed, the fact that this legislative change would make Florida an ‘outlier’ will surely be considered in the ensuing political debate.”

I presume the capital defendant here, Anthony Poole, will appeal this ruling to the US Supreme Court.  Notably, SCOTUS is actively considering jury unanimity issues this term in Ramos v. Louisiana and capital sentencing procedure in McKinney v. Arizona.  So, stay tuned.

January 24, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"What should criminal justice reform look like in 2020?"

The question in the title of this post is the headline of this recent Hill commentary authored by Timothy Head, who is the executive director of the Faith & Freedom Coalition. Here are excerpts:

Since 2007, more than 30 states have passed reforms to reduce incarceration, recidivism rates, and costs; and these reforms have seen significant results. For example, Texas has saved over $2 billion, reduced recidivism by 25 percent, and seen its lowest crime levels since 1968.  But as more states and federal legislators begin to implement reforms, what should be the top priorities?

Narrow the net of incarceration

Incarceration isn’t the right answer for every crime. Offenders whose crimes are motivated by a mental health or substance abuse issue, for example, could be better served through other rehabilitation efforts.  We need to focus on improving early detection of behavioral health needs, expanding access to mental health resources and substance abuse recovery programs, and not making incarceration the default sentence for everyone.

Create effective rehabilitation programs

A 2019 report found that 58 percent of prison inmates don't complete an education program while in prison, even though employment rates for former inmates increase by an average of 10 percent, on average, after they participate in a college program.  By increasing education opportunities for incarcerated individuals, we give them skills and post-incarceration opportunities.

Because incarceration and recidivism are so closely tied to poverty, educational opportunities are one of the best ways to keep former inmates out of prison.  Other proven rehabilitation programs include Bible-based trauma healing programs, prison work programs, and mental health and substance abuse counseling....

Ensure prompt and fair outcomes for both the accused and the victim.

Nearly half of the over 16,000 people in Michigan’s jails are pretrial detainees awaiting trial.  Effective reforms increase pretrial releases and reserve prison and jail resources for those who represent a flight risk or public safety threat.  Additionally, resources like counseling, legal representation, and compensation for victims of crimes sorely lack in states throughout the country.

January 24, 2020 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Prez candidate Tom Steyer releases his plan for "Transforming Criminal Justice"

Back in the fall, it seemed that nearly every week we would see a big new criminal justice reform plan coming from one of the Democratic candidates for President (and I have collected a lot of the posts with this plans below).  But, of course, as the first set of votes approach, we have seen more of these candidates dropping out than proposing big plan.  And yet, excitingly, this press release details that there is now at least one more new reform plan under the heading, "Tom Steyer Will End Cash Bail and School-to-Prison Pipeline: New criminal justice plan will end mass incarceration by focusing on prevention and rehabilitation."  Here is how the press release starts:

Presidential candidate Tom Steyer unveiled a plan to reform the criminal justice system to end mass incarceration breaking the school-to-prison pipeline and fixing the pay-to-play justice system. Steyer’s plan pursues aggressive reforms including doubling the juvenile justice program to keep kids out of prison, and ending the prison industrial complex by closing private prisons, abolishing cash bail and court fees. The plan would reduce the number of individuals entering the criminal justice system, prioritize rehabilitative efforts behind bars, and support individuals when they return to society.  

The full plan runs 17(!) detailed pages, with major section headings that include "Juvenile Justice," "Police Reform," "A Progressive Department of Justice," "Equal Access to Justice in Court," "End Cash Bail," "Release More Rehabilitated People," and "Ensure Returning Citizens Have A Second Chance." There are elements under all these heading that should be of interest to sentencing fans, though the sections on "Ending the War on Drugs" and "Sentencing Reform" and "Improve Prison Conditions" may be of special interest. Here are just a few items from these sections of the Steyer plan:

  • End mandatory minimums and expand judicial discretion for non-violent drug offenders.  Mandatory minimum sentences have played a significant role in increasing mass incarceration by reducing the discretion that a judge has in sentencing an individual for a non-violent drug offense based upon their past record. Punishments should be proportional to the crime. Mandatory minimums reinforce racial prejudice in the system and do not increase public safety.  Tom supports the Smarter Sentencing Act, a bill that reduces mandatory minimum sentences for certain non-violent drug offenders and increases judicial review....

  • Legalize marijuana use and expunge past records.  Policing marijuana use has led to too many unfair incarcerations and predominantly impacted communities of color. Tom endorses the MORE Act, a bill that will deschedule marijuana at the federal level and let states set their own policies.  This bill will also expunge past records and provide individuals who served time for marijuana convictions the opportunity to participate in the legal market, including access to training programs....

  • Eliminate mandatory minimums for non-violent crimes.  As president, Tom will work to eliminate mandatory minimums for all federal non-violent crimes and allow judges more discretion for more serious crimes. And because most people are incarcerated at the state and local level, his administration will incentivize states to eliminate mandatory minimums as well.  Mandatory minimums have been responsible for much of the increase in incarceration.  Tom endorses the Justice Safety Valve Act, a bill that allows judges to use discretion and depart from mandatory minimums when appropriate....

  • Revitalize and reform the Sentencing Commission. T om will fully staff the Sentencing Commission with appointees who will strive for a more progressive criminal justice system.  He will direct the Commission to conduct additional studies on mass incarceration and recidivism and update sentencing guidelines to reflect those priorities.  Tom will double the Commission’s funding so it can offer technical assistance to states.

  • Eliminate the death penalty.  Tom believes it is a moral, practical, and long overdue imperative to end the death penalty.  He believes these individuals should instead serve life sentences without probation or parole. Tom will abolish the death penalty at the federal level and encourage states to do the same.

A few of many prior related posts:

January 24, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

January 23, 2020

Preliminary FBI reports indicate considerable drops in murder and other violent crimes as well as in property crimes in first half of 2019

As summarized effectively in this Crime Report piece, headlined "Violent, Property Crime Reports Fell In 2019’s First Half," the the FBI has just reported some very encouraging crime data.  Here are the basic details:

All categories of violent crime offenses decreased between the first half of 2018 and the first half of 2019, for an overall decrease in violence of 3.1 percent, the report says.  This includes murder, down 3.9 percent, robbery, down 7.4 percent, rape, down 7.3 percent and aggravated assault, down .3 percent.

Property crime also declined during the same period, including burglary, 11.1 percent lower, motor vehicle theft, 6.7 per cent lower and larceny theft, 4.2 percent lower.

It was the third consecutive year of reported crime declines in the first half of the year.  In 2016, all violent crime categories increased compared with the first half of 2015.

The FBI called the data preliminary. Its final report for 2019 is not expected until September.  In that month, the bureau also plans to issue a preliminary report for the first half of 2020.

Federal sentencing fans know that the first half of 2019 was also the first months in which the federal FIRST STEP Act was applicable.  Though I would not be inclined to assert that enacted of that Act somehow contributed to the crime drop, I am inclined to celebrate the fact that opponents of the FIRST STEP Act cannot use early 2019 crime data to contend that the Act somehow made the nation less safe.

I also find intriguing the regional FBI data that shows that all regions except the South experienced bigger crime declines than the national average. My sense is that, in rough terms, fewer Southern states have embraced various criminal justice reforms (including marijuana reform) than states in other regions. Again, these data in no way prove that various criminal justice reforms (including marijuana reform) makes us more safe, but it does seem to help undercut any claims that these reforms make us less safe.

January 23, 2020 in National and State Crime Data | Permalink | Comments (0)

"Criminal Justice Reform in the Fentanyl Era: One Step Forward, Two Steps Back"

Fentanylgraphic_map_0The title of this post is the title of this notable new report from the Drug Policy Alliance. Here is part of its executive summary:

The U.S. is in the throes of a deadly overdose crisis that claimed almost 70,000 lives in 2018. Of those, around 30,000 deaths involved synthetic opioids like fentanyl.  Policymakers have responded to the overdose crisis with a rhetorical emphasis on “treatment instead of incarceration,” leading journalists to comment that we are in the midst of a “gentler war on drugs.”  However, despite a change in discourse, draconian policies have persisted and in many cases been expanded.  This is exemplified by many lawmakers’ reaction to fentanyl and other analog drugs, both on the state and federal level.

Since 2011, 45 states have proposed legislation to increase penalties for fentanyl while 39 states and Washington DC have passed or enacted such legislation.  At this moment, some members of Congress are working to codify harsher penalties by placing fentanyl analogs permanently into Schedule 1 in both the Senate and the House with proposed legislation like the Stopping Overdoses of Fentanyl Analogues Act of 2019 (SOFA) and the FIGHT Act.  In his annual State of the State 2020 address this month, New York’s Governor Cuomo proposed banning fentanyl analogs and expanding access to medication assisted treatment in the very same sentence.

Legislators have dusted off the drug war playbook and proposed a variety of new punitive measures including new mandatory minimum sentences, homicide charges, involuntary commitment, expanded powers for prosecutors and more.  These efforts repeat the mistakes that epitomize the failed war on drugs, while undermining efforts to reform our criminal justice system and pursue a public health approach to drug use.  Indeed, such proposals risk compounding the overdose crisis.

Punitive approaches to fentanyl are particularly disturbing because they run counter to recent policy shifts that have been largely bipartisan in nature. One recent policy shift is a growing promotion of public health approaches to drug use.  There is mounting support for a number of policies and interventions -- such as increasing access to voluntary, medication-assisted treatment and naloxoneb -- as more effective responses to the current overdose crisis than the revolving door of jail or prison.  Another notable policy shift is the long-overdue recognition that decades of harsh and racially-biased drug enforcement have had devastating consequences on individuals and communities, while wasting billions of taxpayer dollars.  A recent analysis of federal fentanyl sentencing revealed that 75% of all individuals sentenced for fentanyl trafficking were people of color, suggesting that fentanyl enforcement already mirrors other disparate drug enforcement.

The criminal justice reform movement has made tremendous progress on reducing drug sentences at the local, state and federal levels.  The trend toward tougher penalties for fentanyl presents a threat to the reform movement, undercutting initiatives to reduce mass criminalization and incarceration.  To date, none of the states that enacted harsher penalties for fentanyl, nor the federal government, have demonstrated a reduction in fentanyl-involved deaths because of these new laws.

In this context, the criminal justice reform movement must do more to combat punitive proposals, putting as much energy into challenging the exceptionalism around fentanyl as other efforts to reduce sentences.  This paper aims to shine a light on the danger that harsh fentanyl penalties present to the criminal justice reform movement and efforts to end the war on drugs.

January 23, 2020 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

January 22, 2020

Council on Criminal Justice releases new papers on "Federal Sentencing Provisions of the 1994 Crime Bill"

Sentencing_Report_LinkI noted in this post this past summer the notable new group working toward criminal justice reform called the Council on Criminal Justice.  In September, I flagged in this post that the Council on Criminal Justice had gotten started on a great new set of  papers and resources taking a close look at the 1994 Crime Bill.  The first two paper in the series, Overview and Reflections by Richard Rosenfeld and Impacts on Prison Populations by William Sabol and Thaddeus Johnson, both provided terrific perspectives and details on the import and impact of the 1994 Crime Bill.

I am now very pleased to report that the third paper in this series has been published under the title "Tough and Smart: Federal Sentencing Provisions of the 1994 Crime Bill."  If you click through to the full paper, you can see that one of the reasons I am pleased to see it published is because I am its author.  I was very honored to get a chance to work with the CCJ team on this project, and all the folks involved with CCJ were quite effectively invested in helping me work through the various complicated federal sentencing stories that emerged from the 1994 Crime Bill.

I recommend that interested persons read this piece in full, as there are lots of intricacies to this story that I was only able to partially capture in what is meant to be a short read.  The start and end of the piece provides a hint of its essential points:

When President Bill Clinton signed the Violent Crime Control and Law Enforcement Act of 1994 (the Crime Bill), he called it the “toughest and smartest crime bill in our history.” Enhancing penalties across a wide range of offenses, the Crime Bill included many provisions that not only justified the “tough” label, but also fueled “get-tough” rhetoric and behavior by federal, state, and local officials nationwide.  This well-known legacy, however, obscures what may be one of the most consequential sentencing provisions in this massive law — a “smart” sentencing section that has allowed tens of thousands of people convicted of drug crimes to avoid certain severe mandatory minimum terms enacted by Congress in the 1980s....

Reflecting the “tough-on-crime” attitudes of the times, some federal lawmakers criticized the Crime Bill as not tough enough despite its many punitive elements. Just weeks after passage of the landmark legislation, Republican lawmakers introduced the Contract with America, which included a promise to adopt a Taking Back Our Streets Act within the first 100 days of what signers hoped would be a Republican-held Congress.  This pursuit of even harsher penalties and even more federal funding for prison construction than what was authorized in the Crime Bill was not surprising; in fact, such calls reflected much of the political and policy thinking of the time — on both sides of the aisle.  In this era, talking tough was widely seen not only as essential to success at the ballot box, but also as the sound policy response to all crime concerns.

While the spirit and text of the Crime Bill focused on a tougher approach to crime and punishment, its sentencing provisions with among the greatest tangible impact were those that enabled people convicted of lower-level drug offenses to receive less severe sentences, and laid the foundation for future crack cocaine sentencing reforms.  Despite that often overlooked reality, the Crime Bill fostered and reinforced tough-on-crime attitudes in Washington and among state and local criminal justice officials that contributed to historic growth in national prison populations.

January 22, 2020 in Data on sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment | Permalink | Comments (0)

US Sentencing Commission releases new report on "Inter-District Differences in Federal Sentencing Practices"

As reported via this USSC webpage, the US Sentencing Commission has this morning released this big new report under the full title "Inter-District Differences in Federal Sentencing Practices: Sentencing Practices Across Districts from 2005 - 2017." Here is a summary and key finding from the USSC's webpage:

This report is the third in a series of reports. It examines variations in sentencing practices—and corresponding variations in sentencing outcomes—across federal districts since the Supreme Court’s 2005 decision in United States v. Booker.

The Commission’s ongoing analysis in this area directly relates to a key goal of the Sentencing Reform Act of 1984: reducing unwarranted sentencing disparities that existed in the federal judicial system. In particular, the Act was the result of a widespread bipartisan concern that such disparities existed both regionally (e.g., differences among the districts) and within the same courthouse. Having analyzed the differences within the same courthouse in its Intra-City Report, the Commission now turns in this report to examining regional differences since Booker....

Key Findings

While the extent of differences in sentencing practices vary depending on the specific primary guideline, the overarching trends indicate that, consistent with the findings of the Commission’s 2012 Booker Report, sentencing outcomes continue to depend at least in part upon the district in which the defendant is sentenced. In particular, the Commission finds that:

  • Variations in sentencing practices across districts increased in the wake of the Supreme Court’s 2005 decision in Booker.  These inter-district sentencing differences have persisted in the 13 years after Booker and six years after the Commission’s 2012 analysis.

  • Sentencing differences increased for each of the four major offense types analyzed (fraud, drug trafficking, firearms related offenses, and illegal reentry) during the Gall Period.  This trend continued for some, but not all, of the four offense types in the six years following the last period analyzed in the Commission’s 2012 Booker Report.

  • Guideline amendments intended to promote uniformity by addressing judicial concerns regarding severity have had an inconsistent impact on inter-district disparity.  Specifically, despite multiple significant revisions to the drug trafficking guideline, including the two-level reduction of the base offense level for all drugs, districts increasingly diverged in their sentencing practices for drug trafficking offenders.  However, the comprehensive amendment to the illegal reentry guideline contributed to increasing uniformity in sentencing practices in the Post-Report Period.

  • Certain districts have consistently sentenced more — or less — severely in relation to the guideline minimums than other districts, both over time and across offense type.

I am already looking forward to finding time to review and assess this latest big report from the USSC. But I cannot help but note at the outset that detailed data work which focuses almost exclusively on sentencing differences without any detailed discussions of sentencing severity or sentencing efficacy seems largely out of sync with the current political and policy criminal justice concerns expressed by both public officials and advocates.

Prior related post:

January 22, 2020 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

January 21, 2020

"Normalizing Injustice: The Dangerous Misrepresentations that Define Television’s Scripted Crime Genre"

The title of this post is the title of this interesting new Color of Change report. Here is an excerpt from the report's introduction:

Police procedurals and legal dramas are the bread and butter of primetime lineups, drawing the largest audiences in the U.S., in addition to hundreds of millions of viewers annually around the world.  These series communicate about the criminal justice system as much as any other popular medium, if not more.  Thus, they likely play some role in shaping viewers’ fundamental understanding of right and wrong, the role of race and gender in society, how the justice system works and what we should and shouldn't expect from both the system and the people in it.

There are many possible consequences of inaccurate and distorted portrayals. For instance, when these series neglect to depict or acknowledge unjust racial disparities in the criminal justice system — as this report demonstrates most of them do — viewers may be more likely to believe that these problems no longer plague the system (or perhaps never have) in real life.

When they depict police, prosecutors, judges and other players in the system as justified and correct in their intentions and actions, and depict the reality of the system as fair and effective, viewers may be more likely to believe the system is working effectively in real life; moreover, they may become skeptical of those who question its fairness.  If series portray white people as victims of crime more often than others, they may affect the level of empathy that viewers feel for the lives of one group of people relative to another.  Such portrayals can influence whom we think of as the face of crime victims, and even what justice for crime victims should look like.

When the beloved police, prosecutors and other criminal justice professional characters on these series break the rules or violate someone’s rights, viewers may see their actions as normal and rightful if there is no depiction of the many harms their rulebreaking behavior causes: short-term and long-term physical harms, financial harms, life trajectory harms, psychological harms, the many different harms of being denied freedom in numerous forms....

The cumulative effects of these and other inaccurate portrayals — whether related to women, people of color or crime and criminal procedure itself — may build an unfounded public faith in the status quo, and even turn the viewing public against urgently needed reforms that criminal justice experts have recommended as necessary, just and effective.

January 21, 2020 in Race, Class, and Gender, Recommended reading, Television | Permalink | Comments (3)

Former AG (and now Senate candidate) Jeff Sessions laments some of the sentence reductions in the FIRST STEP Act

In large part due to Prez Trump's support for the FIRST STEP Act, even the usual suspects in the "tough-and-tougher" crowd are disinclined to be too critical of this law.  But, given that former Attorney General Jeff Sessions spent much of his time as AG seeking to block the Act from getting passed with any sentencing reform provisions, I suppose I was not surprised to see this local press piece headlined "Sessions ‘uneasy’ about parts of Trump’s criminal justice reform bill — ‘Some of the sentence reductions went too far’."  Here are the details:

Former U.S. Attorney General Jeff Sessions appeared in Montgomery on Monday, where he discussed the criminal justice reform bill President Donald Trump has repeatedly championed. Sessions was asked by Yellowhammer News what he thought of the bill. At first, the candidate for his old seat in the U.S. Senate said he supported parts of the bill, but he also told the assembled reporters, “I did think some of the sentence reductions probably went too far.”

“I was uneasy about that,” he added on the question of some of the sentencing reforms.

Sessions, who was speaking at a press conference flanked by law enforcement officials who had just endorsed him, praised some aspects of the bill that is formally known as the First Step Act. “I supported much in that bill, particularly funds for education pre-release, preparation for people to be more successful when they leave,” Sessions remarked.

“There were some reductions in sentences that were legitimate. I previously supported two bills that reduced crack-cocaine sentences,” Sessions intoned. Sessions’ support for crack-cocaine sentence reduction presumably refers to his vote in favor of bills like the Obama-era Fair Sentencing Act that alleviated disparities in the penalty for possessing crack-cocaine and powder cocaine. “People shouldn’t serve any more time than necessary,” Sessions told the audience.

One of the statistics Sessions cited as relevant was the pre-existing drop in federal prison populations from 2013-2018, the year the bill was passed by Congress. In 2013, the federal government held 219,298 incarcerated people, and by 2018, it had reduced that number to 179,898, an 18% reduction in the five years before the First Step Act became law.

In just a few months after the First Step Act was made law, the federal government released an additional 3,100 inmates due to a change in how good behavior is calculated....

“I hope we don’t find that to be true,” Sessions said of his suspicion that the sentencing reforms went too far. “We’ll see how it plays out.”

Since it sounds like Sessions is here endorsing the retroactive application of lower crack sentences, I am not entirely sure exactly what he thinks were the sentence reductions that "probably went too far."   Perhaps Sessions has in mind the increased good-time credits, which impacted tens of thousands of current federal prisoners, but they mostly amount to a few week or months  off for most defendants.  Perhaps Sessions is referencing the reductions in a few mandatory minimums, the reduced impact of 924(c) stacking, and the expanded MM safety-valve (detailed in this USSC document), but there are also all pretty weak sentencing-reform tea, with only the expanded safety-valve impacting more than a few dozen cases each year.

January 21, 2020 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (3)

January 20, 2020

SCOTUS to contemplate yet another level of ACCA jurisprudential hell with Shular oral argument

In this post a few years ago, I asked "At just what level of Dante's Inferno does modern ACCA jurisprudence reside?".   That post and that question was prompted by the headaches I get when trying to make sense of the the modern federal court jurisprudence over application of the Armed Career Criminal Act as it relates to whether a defendant's prior conviction qualities as a "violent felony."  But the US Supreme Court is due to hear oral argument tomorrow in Shular v. United States wherein the petitioner is presenting this question:

Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the Act.

Over at SCOTUSblog in this post titled "Argument preview: Category is: the categorical approach," Leah Litman sorts through the arguments made by the petitioner and the government.  Here are parts of the start and the end of her intricate discussion:

Most of the Supreme Court’s ACCA cases address the meaning of ACCA’s various definitions of “violent felony.”  But Shular’s case concerns the meaning of an ACCA provision that defines “serious drug offense.”  In Section 924(e)(2)(A)(ii), Congress defined a “serious drug offense” to include an “offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance … for which a maximum term of imprisonment of ten years or more is prescribed by law.”

The probation office determined that Shular’s prior Florida convictions were serious drug offenses and recommended that Shular be sentenced under the ACCA.  Shular objected, arguing that Congress defined “serious drug offense” as a series of generic offenses (manufacturing, distributing or possessing with intent) that do not match Florida’s drug offense.  (Specifically, Shular argued that the generic definitions of the drug offenses contain mens rea, or criminal intent, elements, while Florida’s drug laws do not.)....

There is a good amount of text and structure for the Supreme Court to work with in this case.  But the court may be interested in the implications of both sides’ interpretations. Shular is offering the court a tried-and-true approach that has come under fire in recent years.  The government is asking the court to venture into new terrain, but also does not want the court to consider some of the harder questions and greyer areas that might result from the government’s approach.  Oral argument could allow the justices to test out how the government’s proposed interpretation might work.

January 20, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Recalling on-going work of the US Sentencing Commission as I continue to troll for "Reflections on Booker at 15"

In this post last weekend, I noted (1) that it is now a full 15 years since the Supreme Court (not-so-)radically transformed the federal sentencing system through its ruling in Booker v. United States, and (2) that it seems I may be one of the few to now note (or even realize) that we have passed another big milestone in the history of the federal sentencing system.  Though I have not yet received any "Reflections on Booker at 15" in response to my prior post, a reliable source reminded me that the US Sentencing Commission has an on-going series of reports that serve to update the system-wide Booker analysis that the USSC completed in its reports to Congress in 2006 and 2012.

To aid review and reflections, here are links to the USSC's 2006 and 2012 Booker reports and to its notable follow-up work from the last few years:

  1. Report on the Impact of United States v. Booker on Federal Sentencing (March 2006).

  2. Report on the Continuing Impact of United States v. Booker on Federal Sentencing (December 2012)

  3. Demographic Differences in Sentencing: An Update of the 2012 Booker Report  (November 2017)

  4. Intra-City Differences in Federal Sentencing Practices (January 2019)

The same reliable source told me that the Commission is nearing completion on another post-Booker report to be released shortly (and this report will also outline other on-going USSC work in this arena).  If this new Commission report ends up having some provocative findings, perhaps there will be some notable "Booker at 15" talk in the offing.

Prior related post:

January 20, 2020 in Booker and Fanfan Commentary, Booker in district courts, Who Sentences | Permalink | Comments (1)

"'Ban the Box' Policies and Criminal Recidivism"

The title of this post is the title of this new empirical paper authored by Ryan Sherrard available via SSRN. Here is its abstract:

Employment has long been seen as a mechanism for reducing criminal recidivism. As such, many states and municipalities have tried to increase the employment prospects of ex-offenders through "Ban the Box" (BTB) policies, making it illegal to ask about an individual's criminal history on a job application.  There are, however, questions as to how effective these policies are at helping ex-offenders successfully stay out of prison.  In addition, recent research has shown that BTB policies may lead employers to racially discriminate in hiring.  Using administrative prison data, this paper examines the direct effect of BTB policies on rates of criminal recidivism.  I find that while BTB policies don't appear to reduce criminal recidivism overall, these policies may be exacerbating racial disparities.  In particular, I show that being released into a labor market with a BTB policy is associated with higher rates of recidivism for black ex-offenders, with little to no effect for white ex-offenders.  This result is robust to a number of specifications and sub-samples.

January 20, 2020 in Collateral consequences, Data on sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (2)

Has Ohio really had its last execution?

The question in the title of this post is prompted by the statement of a notable Ohio statesman in this local public radio piece headlined "Creator Of Death Penalty Law Says Ohio Won't Have Another Execution." Here is more:

There hasn’t been a killer put to death in Ohio in 18 months.  And the state’s last execution has likely taken place, according to the architect of Ohio’s 1981 death penalty law. But prosecutors say killing off capital punishment entirely would be a mistake.

Ohio’s last execution was in July 2018 -- the next one, in March, seems unlikely, since Gov. Mike DeWine has issued eight execution delays since taking office last year.

But there were still six death sentences handed down last year. Lou Tobin with the Ohio Prosecuting Attorneys Association said he’s concerned what would happen if the death penalty were repealed.  “All of the challenges that we see to the death penalty right now will switch to life without parole. And the next thing you know we won't have life without parole either," Tobin said.

Polls are mixed on public backing of the death penalty, and some Republicans conservatives, including House Speaker Larry Householder (R-Glenford), have said their support is waning or is gone.

Former Ohio Supreme Court Justice Paul Pfeifer wrote the death penalty law and now opposes the way it’s used.  But he said he highly doubts lawmakers would go for abolishment.  “I think it'll be a tough sell to get the legislature to repeal the death penalty that’s on the books," Pfeifer said.

Pfeifer, who is now with the Ohio Judicial Conference, admitted the death penalty has been good for one thing -- plea bargains, to avoid trials that are painful for the victims’ survivors and costly for the courts.  Tobin agreed, and suggested to make sure a death sentence could followed through, lawmakers should look for new ways to carry out executions.

“The statute should provide for lethal injection, any other method of execution that's been found to be constitutional.  And I think we should explore the possibility of using nitrogen gas a protocol that Oklahoma is exploring right now," Tobin said.  Tobin also suggested the federal government or other capital punishment states could help Ohio get lethal injection drugs, or that Ohio should once again allow pharmacies to make those drugs and be shielded from public disclosure.  The last time that was permitted, no pharmacies offered to do so. DeWine has cited drug access problems as the reasons for delaying executions.

Pfeifer said ultimately, it is up to the governor, who can delay sentences or commute to life without parole.  Pfeifer recalled a similar situation with the Ohio governor who oversaw the last two executions before the US Supreme Court struck down capital punishment.  He noted there was a nine-year gap between those executions in 1963 and the court’s ruling in 1972.  “Jim Rhodes was governor of this state for four terms, for 16 years.  But there were two executions when he was brand new [as] governor and then no more happened.  He never said he was against the death penalty.  It just didn't magically happen.”...

There have been 56 executions since the state resumed the death penalty in 1999, after the 1981 statute Pfeifer helped create.  And the state is eighth in the country in total number of executions.  But Pfeifer said he thinks Ohio has seen its last execution -- which he said is a good thing.

For those interested in hearing even more on this topic, I had the honor of doing an hour-long local public radio segment, available here, on "The Future of Ohio's Death Penalty." 

January 20, 2020 in Death Penalty Reforms | Permalink | Comments (0)

January 19, 2020

The Prosecutors and Politics Project releases "National Study of Prosecutor Elections"

The Prosecutors and Politics Project at the University of North Carolina School of Law this past week released this massive new report titled simply "National Study of Prosecutor Elections." Here is the start of the 350+-page report's "Executive Summary":

American prosecutors wield significant power in the criminal justice system.  They must decide when to file charges, which crimes to prioritize, and how lenient or harsh to be in plea bargaining.  Prosecutors are entrusted with this power, in part, because they are accountable to voters.

In most states, that accountability comes in the form of direct elections.  Forty-five states elect prosecutors on the local level.  These local elections provide a powerful check on the power that prosecutors wield — at least in theory. But how does that check operate in practice?  Put differently, how much of a choice do voters have about who will make important criminal justice decisions in their communities?

This report presents the results of a nationwide study of prosecutor elections. The first of its kind, the study gathered data from every jurisdiction that elects its local prosecutors in a recent election cycle.  The study showed great variation in elections across the country.  Some elections gave voters choices in both primary and general elections to choose their local prosecutor.  But other elections were entirely uncontested. And some elections did not even have a single candidate on the ballot.

Whether an election gave voters a choice seems to depend on two different factors.  The first of those factors is the population in the district where the election was held. Communities with large populations tended to have more than one candidate in their elections, while communities with small populations tended to have uncontested elections.

Beginning in February 2018, the Prosecutors and Politics Project began collecting information about the most recent election cycle in each state that elects its local prosecutor. For most states, that meant we collected data from the 2014 or 2016 election cycle.  But in some states the most recent election had occurred as far back as 2012 and as recently as 2017.  In total, we collected election results for 2,318 districts across 45 states.

January 19, 2020 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)